“[I]n this atmosphere of economics now a change in a fundamental part of law affecting landholders is bound to have an effect on the cost of homeowner insurance if the word is out that there is a duty to trespassers. . . .

So before we move into this I ask that this be given very careful consideration because I believe in the courts this will bring about more confusion and its impacts on insurance could be very, very hard for people who are ordinary homeowners who right now are struggling to pay their insurance at this time.”

Victor Schwartz

American Law Institute Annual Meeting

May 18, 2009

The question of the impact of tort law changes on liability, costs, and insurance premiums lurks in many areas, although to date the primary area of inquiry has been in the medical malpractice field.* Victor’s statement addressed a draft Chapter of the Third Restatement of Torts that proposed rules imposing a duty of reasonable care on land possessors to all entrants on the land, save for a small class of trespassers, denominated flagrant trespassers. Flagrant trespassers are those whose entrance on the land is in egregious disregard of the owner’s rights and would include those who enter with the intent to do mayhem or commit other serious crimes while on the property. Victor, the pre-eminent lobbyist for entities that are subject to tort liability or insure against it, was arguing that liberalizing the duties imposed on land possessors could cause real hardship by increasing homeowners’ insurance premiums.**

Such arguments are common, but rarely is empirical data available or, if it is, analyzed. We were able to do some empirical inquiry on this question, unfortunately not until after Victor’s comment. Despite his dire predictions and the absence of any evidence refuting it, I am pleased to report that the ALI membership voted to approve the Chapter. Nevertheless, this blog provides me a preliminary opportunity to respond to the claims made by Victor and raise a cautionary flag about unsubstantiated forecasts of calamity due to progressive reform of tort law.

We realized, while researching and writing the Chapter on land possessor duties, that a huge natural experiment had taken place in this country from 1968 through 2009. During that period, roughly half the states had changed their law from the status-based duty rules inherited from feudal England (i.e., duties varying depending on the status of the entrant on the land) to one imposing a unitary duty of reasonable care on land possessors to all entrants. (Some states included trespassers in this reform; others limited it to invitees and licensees.)

These tort law changes would permit an examination of their impact of these changes on the number of lawsuits and the magnitude of liability. We (my co-authors include Michael Heise of Cornell Law School and Brett Green of the Kellogg Graduate School of Business at Northwestern) were able to obtain data on a state-by-state basis from the Insurance Services Office, which gathers data from insurers and reports to state insurance commissions. ISO compiles composite data, and we secured that data for homeowners and renters’ liability claims and losses for a 20-year period from1989 through 2008.

Our initial examination consisted of the eight states that had reformed their land possessor law during the 20 years for which we were able to obtain data. Looking at the claims and loss experience before and after the change provides some evidence about whether the tort reform intervention had an impact.*** Below are graphs showing the losses (in dollars adjusted for inflation) per occupied unit (including homes, condominiums, and apartments) and the number of claims per 100,000 occupied units that occurred in each state over the 20 year period. Losses and claims are scaled on the left hand Y axis and shown in a blue line, while the legal rule of the state is scaled on the right side of the Y axis and shown in a dotted and discontinuous red line. A value of one on the “reform status” scale corresponds to the historical status-based duty rules, with only invitees owed a duty of reasonable care. Two reflects the most modest reform, providing both invitees and social guest with a duty of reasonable care; three includes all licensees in that duty; and four signifies a duty of reasonable care to all entrants, including trespassers.

Because losses and claims are attributed to the year in which the loss event occurred, a change in land possessor duties could affect claims and losses in years before the change occurred.**** We would expect claims to be the most sensitive measure of the impact of a change in tort law that expands those who are owed a duty of reasonable care. That expansion should produce more claims, but the amount recovered, especially by trespassers, should not increase proportionately. Yet, in the end, losses are more important for the cost of insurance than claims.*****

Eyeballing the claims graphs, only two states appear to have any association between the magnitude of claims and land possessor duty reform. Most states are either unaffected by the change or show a decline in claims after the reform. Two states (Connecticut and and West Virginia) do show an increase in claims, but inferring a causal relationship is undercut by the decline in claims that begins immediately thereafter. Nevada is ambiguous with a small spike that could be associated with reform, but which is also undercut by the subsequent decline. (It does appear that something else was going on that reduced claiming from 1995 through 2008.)

With regard to losses, there is considerable variability from year to year and in all states except for Connecticut, any increase around the time of the reform appears simply to reflect that random fluctuation. Connecticut does have an increase in losses associated with its reform, but it is the only such state. Interestingly, Connecticut’s reform was among the most modest, adding only social guests to invitees as those to whom a duty of reasonable care is owed.

We’re at too early a stage to say anything definitive, and empirical research about legal systems often does not provide strong enough evidence for firm conclusions. Yet the evidence seems to point away from any noticeable impact on losses or expenses to insurers from these changes. We have not yet obtained data on premiums. However, premiums are affected by a number of other factors that will be difficult to identify and measure. Losses, by contrast, are not affected by those other factors and are more directly tied to legal changes than premiums. In short, losses are more sensitive to changes in tort law than premiums.****** Moreover, even if there is an impact on losses and costs for liability coverage, those costs are dwarfed by losses due to hazards covered by the first-party segments of those policies, the latter comprising approximately 90% of the total costs for homeowners’ policies. In short, we have found nothing to support Victor Schwartz’s statement in the preface about the consequences of reforming the law relating to land possessor’s duties. This suggests caution–a trait not often displayed by lawyers engaged in arguing or litigating on behalf of clients–in predicting the impact of a change in tort law on claiming, losses, and insurance premiums. It also suggests skepticism about such claims until empirical evidence can be obtained and analyzed.

**A change in land possessor duties would have its most dramatic impact on liability of those who own or rent residential property. Businesses that open their property to the public are subject to a duty of reasonable care to virtually all entrants.

***We have not yet performed analyses that will attempt to account for other factors that may affect claims and losses.

****We would expect changes in claiming primarily to show up following the date of legal change. Most claims are straightforward and therefore can be resolved within a few months. Thus, the time from event to claim resolution is relatively short. By contrast, complicated claims, which likely correspond to higher-value claims, consist of one-third claims, take significantly longer to resolve and if litigation results, can extend for several years. We suspect these claims constitute a higher proportion of the losses and could produce an effect that looks like it precedes the legal intervention in the graphs above.

*****Losses are not the exclusive source of cost for liability insurers. They also incur costs in hiring attorneys to represent insureds when suit is filed and administrative costs in processing any claim that is filed.